U.S. ex rel. Sakaguchi v. Kaulukukui, 75-1740

• Decision Date: 09 July 1975
• Docket Number: No. 75-1740,75-1740
• Parties: UNITED STATES of America ex rel. Kazuyuki SAKAGUCHI, Realtor-Appellant, v. Thomas KAULUKUKUI, in his capacity as United States Marshal, and Henry Kissinger, Secretary of State, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 726

520 F.2d 726

UNITED STATES of America ex rel. Kazuyuki SAKAGUCHI, Realtor-Appellant, v. Thomas KAULUKUKUI, in his capacity as United States Marshal, and Henry Kissinger, Secretary of State,

Respondents-Appellees.

No. 75-1740.

United States Court of Appeals, Ninth Circuit.

July 9, 1975.

Ralph F. Matsumura, Nathaniel Y. T. Lum, Honolulu, Hawaii, for realtor-appellant.

Murray R. Stein, Crim. Div., Dept. of Justice, Washington, D.C.; Harold M.

Fong, U. S. Atty., Honolulu, Hawaii, John L. Murphy, Chief, Government Regulations Section, Crim. Div., Dept. of Justice, Washington, D.C., for respondents-appellees

OPINION

Before BARNES, WRIGHT and GOODWIN, Circuit Judges.

BARNES, Circuit Judge:

On July 7, 1975, this panel affirmed the denial of a petition for a writ of habeas corpus ordered by the District Court of the District of Hawaii, Honorable Martin Pence, Senior Judge of the District of Hawaii, on February 12, 1975.

Appellant had previously been imprisoned by reason of an Order of Commitment issued by the Honorable Samuel P. King, District Judge of the District of Hawaii, on January 13, 1975, upon a finding duly made of appellant's extraditability, pursuant to Title 18 U.S.C. § 3184. ¹

Appellant filed with his petition for habeas corpus, an "Order to Show Cause" why the writ should not issue, and an Affidavit of Disqualification of Judge King, based on 28 U.S.C. § 47.

Appellant, a native citizen of Japan who had permanent residence status in the United States, was accused by Japanese authorities of the crime of murder.

Plaintiff was originally arrested and confined, in the United States upon a complaint, reciting appellant had been charged with murder while visiting in Japan. A warrant was issued in Japan for his arrest. Appellant had returned to Hawaii, hence the treaty as to extradition was invoked by Japan. Appellant sought release on bail after his arrest in the United States, which was denied on January 6, 1975.

The treaty authorizes a person convicted or accused of a crime listed in Article II, thereof, to be extradited. "Murder, and (an) assault with intent to commit murder," are listed in Article II, (1).

Article V of the same treaty provides that "when the fugitive is merely charged with a crime, a duly authenticated copy of the warrant of arrest, . . . and of the depositions on which such warrant may have been issued, must accompany the requisition." Each was duly authenticated, and each was filed as evidence in the hearing before Judge King on January 13, 1975. Certain documents which had been prepared by the Japanese police and prosecutor's office were received in evidence. Appellant's counsel objected to these documents, asserting:

(1) the documents were not duly authenticated;

(2) the documents were incompetent, without foundation and not admissible;

(3) there was no proof of probable cause appellant had committed the murder.

The objections were overruled, and the appellant was ordered extraditable by Judge King. Before the Secretary of State could issue a warrant of surrender to Japan, appellant filed a petition for writ of habeas corpus.

Presumably ² because appellant had filed his motion to disqualify Judge King, based on 28 U.S.C. § 47 ³ and had demanded that another judge hear his petition for habeas corpus, Senior District Judge Martin Pence heard the petition and denied appellant's petition for habeas corpus on February 12, 1975.

From this denial, this appeal is taken.

The Government, in meeting the issue, accepts the definition of appellant's first alleged error as "improper authentication"; and asserts that 18 U.S.C. § 3190 controls, ⁴ covering not only the appellant's objection to the authentication itself, but also his second objection to the supporting papers which likewise were so authenticated. (Exhibits G-1, G-2, and G-3.)

The Government asserts in opposition to appellant's third alleged error (no proof of probable cause appellant committed the murder) that there was sufficient evidence to establish the prerequisites for a finding of extraditability.

Appellant admits in his brief "the documents submitted in support of the request for extradition appear to satisfy the requirements of both the treaty and statute as regarding their authenticity." He concedes that the translated documents (Gov. Ex. G-2) contain a certification of the United States Consul General in Japan "that the documents are properly and legally authenticated so as to entitle them to be received in evidence." (Op. Br. p. 6.)

Appellant cites 18 U.S.C. § 3190, but, without citing a single case, asserts the authentication is improper because "the documents reveal inconsistencies and discrepancies." (Op. Br. p. 6.) This, of course, is of no consequence if there exists in those documents "any" other sufficient competent evidence. We conclude there was. (See note 4.)

Nor can appellant rely on the theory that Hawaiian law sets the standard by which the sufficiency of competent evidence can be determined. We approve the holding in Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir. 1973), wherein cases which hold contrary to appellant's position are approved and held binding. ⁵

Appellant next attempts to go behind his concessions as to authentication, and in the form of a conclusionary statement (to which he makes strenuous objection respecting portions of the authenticated exhibits), attacks the sufficiency and admissibility of certain facts.

We prefer to rely on the record before us, and the counterstatement of facts in the Government's Brief which appears in the margin. ⁶

We turn to the law. The appellant recognized that the review of a finding of extraditability is not subject to direct appeal. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 64 L.Ed. 616 (1920); Jimenez v. Aristequieta, 290 F.2d 106, 107 (5th Cir. 1961); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973); cert. dismissed by agreement of parties 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973).

Appellant therefore was required to seek relief by filing a petition for habeas corpus. See Shapiro v. Ferrandina, supra, p. 901. But his brief shows little regard for other admonitions and the law expressed in the Ferrandina case.

For example, in addition to the quotation from Ferrandina, supra, n. 5, with respect to authentication, a second example appears.

"In attacking the weight and competence of the evidence before the extraditing magistrate, Shapiro labors under two sets of difficulties. First, the function of the extraditing magistrate is not to decide guilt or innocence, but merely to determine whether there is 'competent legal evidence which . . . would justify his apprehension and commitment for trial if the crime has been committed in that state.' (citing cases) . . . Second, . . . (a) review of his decision generally must be pursued by writ of habeas corpus . . . which . . . is more restricted than review on appeal. The habeas judge can only 'inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty, and . . . whether there was any (competent) evidence warranting the finding that there was reasonable ground to believe the accused guilty.' Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)." (Brackets in original quotation.) Id. p. 900.

For a third objection, appellant urges there was "no legally competent evidence to establish probable cause," i. e., only hearsay.

Shapiro raised the same point "insufficient competent evidence . . . to satisfy New York's test for sufficiency of the evidence necessary to hold defendant prior to trial", i. e., that "only non-hearsay evidence is admissible to demonstrate reasonable cause to believe that defendant committed a felony." We reject this contention.

After commenting on the type of evidence heard by Judge Pollock before his finding of Shapiro's extraditability, ⁷ Judge Friendly, in Ferrandina, wrote:

While the argument is ingenious, it runs afoul of Collins v. Loisel, supra, 259 U.S. (309), at 317, 42 S.Ct. 469 (66 L.Ed. 956), as well as of good sense. Dealing with the Extradition Treaty with Great Britain, 8 Stat. 572, 576 (1842), whose language differs from the treaty with Israel in form but not in substance, Mr. Justice Brandeis said that the treaty's reference to "evidence of criminality" referred "to the scope of the evidence or its sufficiency to block out those elements essential to a conviction," not "to the character of the evidence or to the rules governing admissibility." He added, even more pertinently:

Thus, unsworn statements of absent witnesses may be acted upon by the committing magistrate, although they could not have been received by him under the law of the State on a preliminary examination.

Appellant's attempt to rationalize a rule contrary to Collins v. Loisel (cited above) and Shapiro v. Ferrandina (quoted above), without citation of any cases supporting his position, is a futile endeavor.

We again emphasize that this court is "restrained on this appeal both by the limited nature of the magistrate's hearing and by the standards of review on habeas corpus. The magistrate's function is to determine whether there is 'any' evidence sufficient to establish reasonable or probable cause, Fernandez v. Phillips, supra, 268 U.S. at 311, 45 S.Ct. 541 . . .." Shapiro v. Ferrandina, supra, pp. 904-905 and 913-914.

Extradition treaties must be interpreted liberally. Factor v. Laubenheimer, 290 U.S. 276, 293-301, 54 S.Ct. 191, 78 L.Ed. 315 (1933), " more liberally than a criminal statute or the technical requirements of criminal procedure." Id. p. 298, 54 S.Ct. p. 197 ". . . unsworn statements of absent witnesses may be acted upon by the committing magistrate, although they could not have been received by him under the law of the state (up)on a preliminary examination." Collins v. Loisel, 259 U.S. at 317, 42 S.Ct. at 472. The certification fully complies with the provisions of 18 U.S.C....